Whenever a vendor sells land, they are required to provide a document called a Form 1 Disclosure Statement (usually just called a “Form 1”) to the purchaser.
If the vendor has engaged a real estate agent to sell the land on their behalf, it is the agent’s responsibility to prepare the Form 1 and to make all the enquiries that are necessary to ensure the Form 1 is absolutely accurate.
What is a Form 1?
The Form 1 is supposed to contain all the prescribed information necessary to satisfy the purchaser that they are fully aware of what they are purchasing.  Everything from any mortgages appearing on the title, to encumbrances, to relevant council consents and approvals, to encroachments, to rules and regulations affecting the land, and so on.
The Form 1 is served on the purchaser at or around the time of signing a contract for the purchase of land, and once served the purchaser usually has two (2) business days to decide whether or not to proceed with the contract.
“Cooling off”
If upon a close inspection of the Form 1, which we would usually recommend you do with the benefit of our legal advice, we or you find something which may affect your rights, such as a building restriction or an encroachment on the boundary, that can well influence your decision not to proceed with the contract.
This is called your right to “cool off” on the contract.  In fact, you do not have to give any reason if you exercise your right to “cool off” if you exercise that right within the two (2) business day “cooling off” period.
Defects in the Form 1
However, what if you are outside the two (2) day “cooling off” period, and you or we notice a defect within the Form 1?  It could be something major as the omission or misdescription of a zoning policy or something as minor as the wrong box ticked or not ticket at all.
If there is any defect at all within the Form 1, a purchaser, or their representative such as a property settlement lawyers or property conveyancer Adelaide, should alert the vendor to its existence.
In that event, the purchaser can require the vendor to serve the purchaser with a fresh Form 1 with the defect corrected, in which case the purchaser has another two (2) clear business days to “cool off” on the contract.
You can imagine the embarrassment to the vendor’s agent not to say anything of the risk involved if the Form 1 has to be redone and served on the purchaser, who then has another two (2) clear business days to “cool off”.  This can occur at any time before settlement.
What if settlement has taken place?
There are remedies available to a purchaser if they have already settled pursuant to the contract, perhaps have had a case of “buyer’s remorse” and learnt that there was a defect in the Form 1.
In that event, the purchaser is entitled to approach the vendor and seek the vendor’s agreement, and failing agreement to seek a Court Order, “rescinding” the contract, in other words to set the contract aside and be refunded the purchase price.
If the purchaser does not wish to have the contract set aside, depending on the nature of the defect in the Form 1, the purchaser may wish to claim damages against the vendor to compensate them for the loss that they may have incurred as a result of the vendor’s failure to serve them with an accurate Form 1.
For example, a defect omitting reference to certain restoration work required to comply with a heritage listing may not have affected the purchaser’s decision to settle on the contract, but may well entitle the purchaser to reimbursement for the necessary building works.
Buyer (and vendor) beware!
A contract must be read and considered together with the Form 1, which is arguably as important if not more important a legal document as the contract.
Contracts can be open to interpretation and the terms may well be expressly varied by written agreement between the vendor and purchaser or implicitly by their conduct.  It is essential that you obtain legal advice with respect to the terms of the contract before you sign same.
The Form 1 Disclosure Statement, on the other hand, is a statutory document designed to protect the purchaser and must be read thoroughly, and preferable with the benefit of legal advice, before you sign the contract or after you have signed the contract especially within the two (2) business days you can decide to “cool off”.
You will definitely need to get legal advice if you learn of a defect within the Form 1 at any time before settlement to assist you with the decision whether or not to “cool off” or proceed with the contract.
If you are a disgruntled purchaser having settled pursuant to the terms of the contract, our specialist legal assistance may well be used to “detect a defect” within the Form 1 which may well entitle you to rescind the contract or seek some other remedy such as damages from the vendor.
If you are a purchaser and consider that your rights may have been affected by a defective Form 1, or if you have any query at all with respect to a conveyancing Adelaide or property law matter, please do not hesitate to contact us on 8276 7955 or email your enquiry at [email protected].  Remember that in the matter of contracts, time is always of the essence, so act now.
The post Buyers (and Vendors) Beware! The Dangers Of Defective Form 1 Disclosure Statements appeared first on Di Rosa Lawyers.

Whenever a vendor sells land, they are required to provide a document called a Form 1 Disclosure Statement (usually just called a “Form 1”) to the purchaser.

If the vendor has engaged a real estate agent to sell the land on their behalf, it is the agent’s responsibility to prepare the Form 1 and to make all the enquiries that are necessary to ensure the Form 1 is absolutely accurate.
What is a Form 1?
The Form 1 is supposed to contain all the prescribed information necessary to satisfy the purchaser that they are fully aware of what they are purchasing.  Everything from any mortgages appearing on the title, to encumbrances, to relevant council consents and approvals, to encroachments, to rules and regulations affecting the land, and so on.
The Form 1 is served on the purchaser at or around the time of signing a contract for the purchase of land, and once served the purchaser usually has two (2) business days to decide whether or not to proceed with the contract.
“Cooling off”
If upon a close inspection of the Form 1, which we would usually recommend you do with the benefit of our legal advice, we or you find something which may affect your rights, such as a building restriction or an encroachment on the boundary, that can well influence your decision not to proceed with the contract.
This is called your right to “cool off” on the contract.  In fact, you do not have to give any reason if you exercise your right to “cool off” if you exercise that right within the two (2) business day “cooling off” period.
Defects in the Form 1
However, what if you are outside the two (2) day “cooling off” period, and you or we notice a defect within the Form 1?  It could be something major as the omission or misdescription of a zoning policy or something as minor as the wrong box ticked or not ticket at all.
If there is any defect at all within the Form 1, a purchaser, or their representative such as a lawyer or conveyancer, should alert the vendor to its existence.
In that event, the purchaser can require the vendor to serve the purchaser with a fresh Form 1 with the defect corrected, in which case the purchaser has another two (2) clear business days to “cool off” on the contract.
You can imagine the embarrassment to the vendor’s agent not to say anything of the risk involved if the Form 1 has to be redone and served on the purchaser, who then has another two (2) clear business days to “cool off”.  This can occur at any time before settlement.
What if settlement has taken place?
There are remedies available to a purchaser if they have already settled pursuant to the contract, perhaps have had a case of “buyer’s remorse” and learnt that there was a defect in the Form 1.
In that event, the purchaser is entitled to approach the vendor and seek the vendor’s agreement, and failing agreement to seek a Court Order, “rescinding” the contract, in other words to set the contract aside and be refunded the purchase price.
If the purchaser does not wish to have the contract set aside, depending on the nature of the defect in the Form 1, the purchaser may wish to claim damages against the vendor to compensate them for the loss that they may have incurred as a result of the vendor’s failure to serve them with an accurate Form 1.
For example, a defect omitting reference to certain restoration work required to comply with a heritage listing may not have affected the purchaser’s decision to settle on the contract, but may well entitle the purchaser to reimbursement for the necessary building works.
Buyer (and vendor) beware!
A contract must be read and considered together with the Form 1, which is arguably as important if not more important a legal document as the contract.
Contracts can be open to interpretation and the terms may well be expressly varied by written agreement between the vendor and purchaser or implicitly by their conduct.  It is essential that you obtain legal advice with respect to the terms of the contract before you sign same.
The Form 1 Disclosure Statement, on the other hand, is a statutory document designed to protect the purchaser and must be read thoroughly, and preferable with the benefit of legal advice, before you sign the contract or after you have signed the contract especially within the two (2) business days you can decide to “cool off”.
You will definitely need to get legal advice if you learn of a defect within the Form 1 at any time before settlement to assist you with the decision whether or not to “cool off” or proceed with the contract.
If you are a disgruntled purchaser having settled pursuant to the terms of the contract, our specialist legal assistance may well be used to “detect a defect” within the Form 1 which may well entitle you to rescind the contract or seek some other remedy such as damages from the vendor.
If you are a purchaser and consider that your rights may have been affected by a defective Form 1, or if you have any query at all with respect to a conveyancing or property law matter, please do not hesitate to contact us on 8276 7955 or email your enquiry at [email protected].  Remember that in the matter of contracts, time is always of the essence, so act now.
The post Buyers (and vendors) beware! The dangers of defective Form 1 Disclosure Statements appeared first on Di Rosa Lawyers.

We’ve all heard stories of families not getting along especially when there is a death of a loved one and the time comes to see what’s in their will. Perhaps your much-loved elderly mother has just passed away and you have been unexpectedly left out of her will. “Why me?” you say, hurtfully and ruefully. […]

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We have often been asked by clients in family law property cases if it is possible to set up a family trust to protect assets held by the trust from a claim by their spouse or partner in the event of a breakdown of the marriage or relationship. There seems to be an impression among the […]

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The Supreme Court of South Australia is the only Court in South Australia that can make orders regarding the validity of a will of a deceased person and the formal appointment of an executor or an administrator of a deceased estate. The Probate Registry of the Supreme Court of South Australia deals with applications for […]

The post How to get a Grant of Probate re-sealed in South Australia appeared first on Di Rosa Lawyers.

Under Australian law, if you’re from overseas you will ordinarily have to apply for foreign investment approval before purchasing residential real estate in South Australia. As there is a shortage of housing in South Australia like the rest of Australia, your application will be viewed more favourably if it is considered a genuine investment that […]

The post Foreign investment in South Australian real estate: what are the legal requirements? appeared first on Di Rosa Lawyers.

The world is a global village and increasingly Australians are building their wealth by owning assets in more than one country.   And not just the shopping centre moguls, international sports stars and home-grown Hollywood actors. After the GFC many ordinary Australians invested in the American real estate market and scores of Australians of European and […]

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Under the Family Law Act, superannuation is treated as property which can be divided or “split” on the breakdown of a marriage or de facto relationship, either by agreement or a “splitting order”. The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, […]

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In our increasingly cosmopolitan world, marriages (including SSM) and de facto relationships between people from different countries is more common than ever before. When these relationships break down there will often be issues regarding how their assets are dealt with particularly where those assets are in different countries. The Family Courts of Australia and the Federal […]

The post Overseas assets: are they included in an Australian property settlement? appeared first on Di Rosa Lawyers.

A person’s superannuation can often be their biggest asset at any given time, especially when they die. Maybe this describes you? You may not know this, but your superannuation does not automatically form part of the assets under your will. Your super is not usually covered by your will because your will only covers assets […]

The post Superannuation and your will: it’s not that simple appeared first on Di Rosa Lawyers.

We are excited to introduce another innovation in the way we do business here at Di Rosa Lawyers. As of the beginning of December 2018, our new service portal launched online at portal.dirosalawyers.com.au. Our service portal can be accessed by our clients 24 hours a day, 7 days a week on our website and whenever […]

The post Introducing Di Rosa Lawyers Service Portal appeared first on Di Rosa Lawyers.

On 29 November 2018 Probate was the first jurisdiction in South Australia to transition to CourtSA, the digital platform of the Courts Administration Authority which runs the State Courts. Now all Probate applications are conducted electronically using CourtSA. Put simply, Probate is the formal validation of a Court that a person’s will is their last […]

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